Burglary and aggravated burglary are serious criminal offences under sections 76 and 77 of the Crimes Act 1958 (Vic). Burglary involves entering a building as a trespasser with the intention of committing a serious offence inside. Aggravated burglary is the more serious form of the offence, applying where the accused was armed or where a person was present in the building at the time.

Burglary matters may be heard in the Magistrates’ Court or the County Court of Victoria depending on the circumstances. Aggravated burglary, which carries a maximum of 25 years imprisonment, is among the most serious property offences in Victorian law. At Angus Cameron and Partners, we have represented countless clients facing burglary and aggravated burglary charges across all Victorian courts, from summary hearings through to jury trials.

If you have been charged with burglary or aggravated burglary, it is important to get experienced legal representation as soon as possible. The elements of these offences are specific, and there may be defences available depending on the circumstances.

Burglary

The prosecution must prove three elements beyond reasonable doubt:

  • you entered a building, or part of a building;
  • you did so as a trespasser; and
  • at the time of entry, you intended to steal something from the building, or to commit an offence involving assault or damage to property that carries a maximum penalty of five years imprisonment or more.
Building

Whether a structure is a “building” is a question of fact for the jury, taking into account factors such as its size, weight, permanence, the presence of doors and locks, and whether it has electricity. The definition also extends to inhabited vehicles and vessels — such as a houseboat or a caravan that someone lives in — even when the occupant is not present.

Issues can arise where a person enters an external structure attached to a building, such as a porch or veranda. In those cases it is for the jury to determine whether the accused entered the building itself.

As a trespasser

You enter as a trespasser if you enter knowing you have no right or authority to do so, or being reckless as to whether you have that right. Even if you have a general right to enter a building — for example, as a customer or tradesperson — entering for a purpose other than the one for which that right exists is likely to be a trespass.

Intention at the time of entry

The prosecution must prove that you had the relevant intention at the time you entered the building. An intention formed only after entry is not sufficient. However, it is enough to enter with an intention to steal anything of value that might be inside — you do not need to have had a specific item in mind.

Aggravated Burglary

Aggravated burglary applies where the accused committed a burglary and one of the following additional circumstances existed:

  • at the time, the accused had with them a firearm, imitation firearm, offensive weapon, explosive or imitation explosive; or
  • at the time of entering the building, a person was present, and the accused knew that a person was present or was reckless as to whether a person was present.
Carrying weapons

An article is “with” the accused if it was in their possession or readily available for use. The accused must have known the article was with them. An article that is possessed in a way that makes it impossible to use will not satisfy this element — however, drawing attention to its existence can be sufficient.

What counts as a weapon

The offence covers five categories of article:

  • Firearm: any device designed, adapted or capable of being modified to discharge a bullet or other missile. This includes devices whether or not assembled, operable or complete.
  • Imitation firearm: anything that has the appearance of being a firearm, whether or not it is capable of being discharged.
  • Offensive weapon: any article made or adapted for causing injury or incapacitation, or which you intend or threaten to use for that purpose. An otherwise ordinary object — such as a kitchen knife or bottle — can become an offensive weapon if you intend to use it offensively, even if that intention formed only at the time of the robbery.
  • Explosive: any article manufactured to produce a practical effect by explosion, or which you intend to use for that purpose.
  • Imitation explosive: any article that might reasonably be taken to be or to contain an explosive.
Person present — knowledge or recklessness

For the “person present” limb, the prosecution must prove both that a person was in fact present in the building at the time of entry, and that the accused knew this or was reckless about it. Recklessness in this context means knowing it was probable that a person was present — a mere possibility is not enough.

Defences

Being charged with burglary or aggravated burglary does not necessarily mean you will be convicted. There are several defences that may apply depending on the circumstances.

No trespass

If you had a genuine right or authority to enter the building for the purpose you entered it, you were not a trespasser. In those circumstances, the charge will not be made out.

No intention at time of entry

If the prosecution cannot prove that you had the relevant intention at the time of entry — for example, because any intention to steal only formed after you were inside — the element of intention will not be satisfied.

No knowledge or recklessness as to person present (aggravated burglary)

For the person present limb of aggravated burglary, if you genuinely did not know and were not reckless about whether a person was in the building, this element may not be made out.

Insufficient evidence or improperly obtained evidence

The prosecution must prove each element beyond reasonable doubt. If the evidence is weak on any element, or was obtained unlawfully, there may be grounds to challenge the prosecution’s case.

FAQs

What is the difference between burglary and aggravated burglary?

Burglary involves entering a building as a trespasser with intent to commit a serious offence. Aggravated burglary is the more serious form, applying where the accused was armed at the time, or where a person was present in the building and the accused knew this or was reckless about it.

Do I have to have stolen something to be charged with burglary?

No. Burglary is committed at the point of entry, provided you had the relevant intention at that time. You do not need to have actually stolen anything or carried out the intended offence.

Can a caravan or boat count as a building for burglary purposes?

Yes. The law extends the definition of building to inhabited vehicles and vessels, such as caravans and houseboats. This applies even when the occupant is temporarily absent.

What are the penalties for burglary and aggravated burglary in Victoria?

Burglary carries a maximum penalty of 10 years imprisonment. Aggravated burglary carries a maximum of 25 years. The actual sentence will depend on the circumstances of the offending and your personal history.

Do I need a lawyer if I'm charged with burglary?

Yes. Both burglary and aggravated burglary are serious charges. The legal elements — particularly trespass and intention at the time of entry — are technical and fact-specific. An experienced criminal lawyer is essential to protect your rights and ensure every available defence is properly considered.

Is burglary an indictable offence in Victoria?

Yes. Both burglary and aggravated burglary are indictable offences. However, depending on the circumstances, both can be heard in the Magistrates’ Court.

What is the average sentence for aggravated burglary in Victoria?

Sentences vary significantly depending on the circumstances of the offending — including whether weapons were carried, whether anyone was present, the degree of planning, and any injury caused — as well as the offender’s personal history. We can provide a realistic assessment of likely sentencing outcomes once we have reviewed the full facts of your matter.

Can I get bail if charged with aggravated burglary?

Aggravated burglary is a Schedule 2 offence under the Bail Act 1977, meaning you must demonstrate a compelling reason why your continued detention is not justified. The court will also consider whether you pose an unacceptable risk. We make urgent bail applications and present the strongest possible case for our clients.

What is the difference between burglary and home invasion?

Burglary involves entering any building as a trespasser with intent to commit a serious offence. Home invasion is a more serious offence that specifically involves a burglary of a home, committed in company with others, where either a weapon is carried or another person is present. Home invasion carries a maximum of 25 years; aggravated home invasion carries a maximum of life imprisonment.

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